Chapter 5 - Managing the Mediation Process
This is a chapter from the Bloomsbury Professional book Mediator Skills and Techniques - Triangle of Influence, 1st Edition, which is a clear, practical and essential guide covering the skills, techniques and strategies required in mediation. It is a resource for both beginner and experienced mediators. It also provides insights and resources for lawyers representing clients in mediation, other participants in mediation and those involved in the practice of dispute resolution. Along with examples, case studies, short exercises, precedents, guidance notes and other resources, this book covers topics such as establishing the foundations of effective mediation and managing the mediation process.
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Table of Contents
- A. The power of process
- B. Meeting, greeting and seating
- C. Mediator's opening statement
- What are the functions of the mediator's opening statement?
- What are the main principles to be followed in the mediator's opening statement?
- Form of a model mediator's opening statement
- Sample opening statement
- Delivery of the mediator's opening statement where there are two or more mediators
- Questions arising out of the mediator's opening statement
- Omissions from the mediator's opening statement
- D. The party statements
- Purpose of party statements
- Scope of party statements
- Focus of party statements
- Who makes the party statements?
- Dangers of excluding clients from making the opening presentations
- Which party makes the first statement?
- Who should decide on who speaks first?
- Private rationales for who speaks first
- Public explanations for who speaks first
- Preventing a defensive response from the second speaker
- To whom are the party statements addressed?
- Mediator's role during the party statements
- Case illustration
- Request for a 'right of reply'
- Mediator's summary of the party statements
- E. Defining the problem
- How can the mediator avoid single issue lists?
- 'One-party' issues?
- Presenting the list of issues visually
- Prioritising the issues
- Standard issue lists
- Standard issues: partnership dissolution
- Using the list of issues
- Dangers with developing the list of issues
- F. Generating options, negotiation and problem-solving
- Exchange of information and views – storytelling
- Case illustration
- Uncovering interests and developing and exploring options
- Thinking creatively
- Evaluation and selection of options
- Case illustration
- Positional bargaining
- G. Separate meetings
- Purpose of separate meetings
- Timing of separate meetings
- Separate meetings and shuttle mediation
- Separate meetings and physical space
- Change of dynamics in separate meetings
- Case illustration
- When to end separate meetings
- The separate meeting transitions
- Transition 1: Breaking into separate meetings
- Transition 2: Commencing a separate meeting
- Transition 3: Ending a separate meeting
- Transition 4: Resuming the joint session
- Potential dangers with separate meetings and ways of handling them
- Learning lessons
- H. Final decision-making
- I. Recording the decisions
- J. Closing statement and termination
- K. Post-mediation activities
- L. Variations in the process
- M. Summary
- N. Tasks for beginner mediators
- O. Recommended reading
More haste, less speed
5.1 This chapter deals with the stages of mediation and the role of the mediator in conducting the mediation process. Variations to the process, and across practice areas, are outlined in Chapter 9. The mediator assumes multiple identities in mediation, as chairperson, manager, guide, conductor, leader, controller, umpire and police officer. All these roles of influence are based on the distinction between process and content, unreliable and misleading as that distinction is: the mediator is responsible for conducting and managing the process of dispute resolution, while the parties are responsible for making decisions on its substantive content.
In Chapter 4 reference was made to the roles of mediators before the commencement of the mediation meeting. Here the focus is on their roles during the mediation meeting itself, and also in relation to post-mediation activities. Clearly, the more work that has been done prior to the meeting, the more the mediator will be able to abbreviate some of the stages without a major threat to the process.
A mediation has the following typical stages:
meeting, greeting and seating;
mediator's opening statement;
parties' initial statements;
definition of the problem;
generating solutions, negotiation and problem solving;
final decisions and closure;
5.2 Mediators greet the parties, engage in pleasantries and small talk, and seat them according to the mediator's sense of what is appropriate. This may also involve some introductions: first, of the mediator where he or she is unknown to the parties; and second, of professional advisers who are present or of other parties not known to one another (for example, a claimant may not know the insurer's representative). In large mediations this can be facilitated with a mediator-prepared list of those who will be present, or even name or place cards. In commercial mediations there can be an exchange of business cards.
5.3 In this early stage, mediators should also indicate what would be considered suitable forms of address, in particular where it seems appropriate to use first names. It is also the time to establish any constraints for the meeting: time commitments, breaks for the parking meter, limits on mobile phones, and the like. The question of small talk at this stage will depend very much on questions of culture, time and personality. Where it is appropriate in terms of those three factors, small talk can personalise the relationships between the parties and the mediator and assist the parties to settle in.
In an industrial dispute between a trade union and five employers in a particular industry, considerable preparatory attention was given to the question of who would be present at the mediation as representatives, advisers and resource persons. As this was an important issue for all concerned, the mediator tabled a document at the mediation listing all those present, together with a description of the capacity in which they were participating. Despite the need for this diligence, most of the participants had negotiated with one another previously and the culture allowed for considerable small talk and banter from the earliest stages of the mediation.
5.4 The first formal part of the mediation comprises an opening statement by the mediator. Experience indicates that this is an important stage of the process, particularly for first-time clients of mediation, regardless of how much prior contact there has been with the mediator.
allows the parties to settle in, puts them at ease as their role is limited to listening, and provides a mini mediation ritual;
builds rapport between the parties and mediator;
reassures the parties on their choice of mediation (if relevant) and commends them on their commitment;
acknowledges the significance of the matter to all parties;
informs them about the nature of mediation, the mediator's role, and their role;
can be used to distinguish mediation from other forms of help or intervention, like counselling and arbitration;
explains the order of events for the rest of the mediation meeting;
stresses the flexibility in the process;
explains the rationale for the party statements and provides an order for the presentations;
establishes the mediator's control and the parties' commitment to the mediation guidelines – the 'table manners' for the meeting;
allows the mediator to establish his/her credentials and trustworthiness;
establishes positive goals and an optimistic tone for the proceedings;
identifies common ground and common goals;
encourages parties actively to participate and reminds them that they are in control of the outcome;
deals with the confidentiality issue;
confirms the mediator's neutrality and impartiality;
establishes that the parties have authority to settle (if relevant);
clarifies special conditions, for example, on the need for agreements to be reduced to writing;
addresses any other formalities regarding settlement, for example, review or ratification that might be required;
manages expectations, for example, by reminding the parties that they might reach impasse and that compromise will be required;
encourages openess and information exchange;
allows for clarification on the roles of lawyers, witnesses and other support parties present (and those who may be at the end of the telephone).
In almost all cases the statement is presented orally. In some cases, points are distributed in written form or shown on an overhead projector which the parties can follow as the mediator works through them in more detail.
It should be clear and understandable in positive, goal-oriented language. By projecting a positive tone for the mediation, a productive atmosphere can be created. This does not mean that the mediator should promise a favourable outcome, but to be hopeful about what mediation can deliver.
It should be in plain English and avoid legal or technical terms. It should not be overly formal and is best delivered in a more conversational style, whilst ensuring that it is polished and professional. It should not be read verbatim from notes. The delivery should be confident as that helps to establish the mediator's authority and credibility.
It should be concise – keeping it short will ensure that the participants listen to it. The mediator should assume, however, that important elements of it may need to be at later stages in the process.
It should be made in all cases, even where the parties are repeated users of mediation such as insurers, banks and government departments.
It should be made in all cases, even where the elements have been told to the parties beforehand, so that they all hear the same thing at the same time.
5.7 Every mediator's opening statement needs to be adapted to what is suitable to the parties, the dispute, the circumstances of the mediation and other relevant factors. The following is an example of a statement which has implicit assumptions about all of the above matters. It would require amendments, including abbreviation, in many circumstances.
Welcome to the mediation, my name is Angela Smith and I am the mediator. You both know each other, but you may not know each other's solicitors. Jane, this is Robert Baker, who is assisting Peter. Peter, this is Alan Nolan, who is Jane's solicitor. Please call me Angela. Are you also comfortable with first names?
Before we get going I would like to check with you about timing matters. We originally agreed to meet today for up to four hours, can you all recommit to that ...? Do you have any parking limits, or other time constraints ...? Do you both have authority to resolve this matter today?
By way of background, Jane you approached me about having a mediation and I spent some time talking to you on the phone and sent you some written information about mediation, and Peter I did the same with you. You both know that I have spoken to your solicitors by telephone and have received the papers which you prepared for me. That is all the contact I have had about this matter, and I have had about the same access to both of you. Are there any queries about that?
You've made the decision to come to mediation yourselves and generally this is a better way of dealing with problems than going into battle. So that's a commendable start. Let me tell you briefly a few things about mediation, although I appreciate that you may have heard some of this before.
Mediation is a structured opportunity for those with a problem to make decisions about it themselves. My role as the mediator is not to make those decisions for you; nor is it to tell you what decisions to make or to advise you on the law or on technical matters. My role is to assist you along the way in your own decision-making. Sometimes emotion or poor communication makes it difficult for people to deal with problems. The mediator's role is to guide them down the path of decision-making and help them to avoid the obstacles and pitfalls. Peter and Jane, you will be discussing the situation and making the decisions, and your advisers will assist you in that process.
As you know from the materials sent through to you, I have practised for ten years as a mediator. While every situation is unique, I have considerable experience of working through the kind of problems we will be discussing.
I am a neutral and impartial party in the mediation and you do not have to try and persuade me about the merits of your case. If at any stage you feel a lack of impartiality, please let me know.
The objective today is for you to make decisions on the issues you are facing, and my role is to assist you in that process. Are there any questions?
This is what will happen in the mediation process. Shortly I shall ask each of you in turn to explain to me your main concerns. This need only be a brief overview as there will be time later to go into the detail. After you have each made a statement I shall summarise it back to you and then we shall confirm the matters in respect of which there already is agreement and what matters still require decisions. I shall then write these issues on the whiteboard/flipchart and we can use it as an agenda for the meeting. You will then work through the issues on the board/chart, looking at options for dealing with them, and making as many decisions as you can.
A normal part of the mediation process is for the mediator to meet separately with each of the parties. As you have advisers, I would meet with Jane and Alan together, and with Peter and Pat together. This gives me an opportunity to see how the mediation is going for each of you, it allows you to raise matters which have not come up when we were together, and it allows the other party to have a break and to think about settlement options. It is also an opportunity for refreshments and to make any calls if you need to. Are there any questions? Of course this is a flexible process and anyone can ask for an adjournment at any reasonable time.
In my experience mediation works best if some basic guidelines are observed. It helps if we speak one at a time, and even where emotions run high it is useful if no-one denigrates the other. As you know this is a non-smoking building, and we should probably also make it a mobile-free zone while we are together. We could call these the table manners for the mediation. Can you commit to them, Jane …? Peter …?
I need to refer to one more matter before we begin. Mediation is conducted confidentially, which means that, in so far as the law allows, I will not disclose anything said here today. I will be taking some brief written notes, but these will be destroyed after the mediation and cannot be accessed by either of you. Mediation is also conducted on a 'without prejudice' basis which means that should the matter go to court, which we hope it will not do, then neither of you can lead evidence about what the other said at the mediation or produce documents which they made for the mediation. Do you understand these basic principles …? Please check with your solicitors if you require more advice on these points.
As regards the outcome, the situation today is that any agreements will not be binding until they have been reduced to writing and signed by both of you. Is that understood?
Before we begin, are there any questions which either of you have about mediation generally, or about what will happen here today?
Good, are you both then prepared to continue along the lines I have outlined?
5.8 There should be no sense of hierarchy between co-mediators, which entails that they should share the statement and not leave all or most of it to one mediator. How they divide it up is a matter of logic, convenience and training, subject only to the necessity of operating as a team. Because a division of tasks is more important during this stage of co-mediation than in later stages, co-mediators require a clear understanding of who will say what, and what their 'cues' are, in order to operate as a team in delivering the statement.
5.9 Questions asked at the invitation of the mediator at the end of the statement should be dealt with as clearly, but briefly, as possible. Solicited or unsolicited questions during the presentation of the statement can be dealt with there and then in like manner, or the mediator can advise that they will be answered later in his or her opening. A delicate balance is required between satisfying the needs of the questioner, on one hand, and avoiding over-elaborate answers and delay, on the other.
5.10 Much will depend on when the mediator discovers that an omission has been made. Generally, a missing element can be added at any stage of the mediation, provided the mediator openly acknowledges the oversight and emphasises its 'normality' in mediation. For example, 'I'm sorry that I forgot to tell you in the beginning that it is a normal feature of mediation for the mediator to see the parties separately …'. After a certain stage in the mediation, it will be too late to deal with the omission , and this might have little impact on the final product.
5.11 In most mediations the parties, and/or their representatives, will be invited to make a statement early in the proceedings. Here the mediator hands over to the parties and they have the dominant role in the process for the first time, but in a controlled and structured way.
To allow each party to make their first contribution without interruption or confrontation and to satisfy their need to have their say and be heard.
To provide information to the mediator about the parties' concerns, particularly where the mediator has had no prior contact with the parties, as a basis for understanding the dispute and developing an agenda.
To provide a basis for the mediator to acknowledge what the parties have said so as to satisfy their need to be listened to and know that they have been heard.
To provide an opportunity for each party to hear the other's presentation in the latter's own words and thereby understand what their current concerns are.
To give everyone the 'big picture'.
To give each party an opportunity to assess the credibility, sincerity and other qualities of the principals and decision-makers.
To confront each party with some aspects of the other's case, in order to create doubt about their own position.
To achieve a 'day in court' benefit for the parties.
To allow venting and for cathartic benefits.
To give the mediator a sense of the dynamics – who leads, who influences and who is respected.
To allow the parties to acknowledge, if appropriate, the relevance of their relationship.
It is not within the purposes of the party statements to encourage discussion, negotiation or altercation between the parties at this stage, nor to encourage the parties to propose and accept solutions. Experience suggests these aims and objectives could be premature and counter-productive at the early stages. Timing is important in mediation and the mediator has control of the timer.
5.13 The party statements should deal with broad themes. This means that they need only be brief. These requirements should be explained to the parties, and where the statements become long-winded, repetitive or excessively detailed the mediator should refer back to these constraints. Loquacious parties might need to be reassured that matters of detail can be dealt with comprehensively at later stages of the mediation.
This topic raises the question of the extent to which mediation clients should be able to 'tell their stories'. There are many advantages in encouraging storytelling by clients. It allows them to present things in their own words, it discloses relevant details, it allows the listener to identify the speaker's interests, and it provides satisfaction for the teller. It can also help to clarify or overcome misunderstandings, miscommunication or misperceptions. Roger Schank, an artificial intelligence researcher, explains that human memory is story-based, so that to disallow storytelling is to disallow effective conversation and communication. Donald Schon of MIT and Chris Argyris of Harvard Business School depicted the impact of storytelling via a 'ladder of inference'.
On the other hand, stories tend to focus on the pastand the differences in perceptions about when and how the conflict started. Stories also tend to reinforce blame and other negative judgements and they may have no impact on the other negotiating party. The teller of a story tends to cast himself as the hero and the counterpart as the villain or problem-maker, sometimes referred to as the 'stereotype bias'. Most storytelling is about linear recollections about the past, whereby the party casts him- or herself as the defender and the counterpart as the aggressor. Frequently, there is no acceptance of any contribution made by the party to the problem.
Lawyers and courts tend not to allow free storytelling and rather encourage structured disclosures from clients. In mediation there should be more scope for storytelling. However, this need not all occur in the party statements. Our own preference is to keep the opening statements relatively short and to allow further storytelling when parties exchange information and views on the issues identified as part of the agenda.
5.14 Mediators can invite the parties to focus on different factors in their statements, though the extent to which this guidance will affect what the parties actually say is unpredictable. Thus mediators can attempt to make the focus and content of the opening statement:
Fact-based: 'Tell me the history and facts in this case as you see them …'
Rights-based: 'Tell me what your arguments and evidence are …'
Positional: 'Tell me what you are here for, what would you like to achieve in the mediation …'
Legalistic: 'Tell me what the issues are between you today …'
Narrative: 'Tell me what happened and what effect it had on you …'
Interest-based: 'Tell me what your concerns are today …'
Problem solving: 'Tell me what decisions need to be made today …'
Procedure-based: 'Tell me first how you think we should go about resolving the problems that we are dealing with …'
5.15 Each approach has its advantages and disadvantages. Most mediators would generally regard the last four approaches as more appropriate than the first four. Each of the last four is in keeping with the philosophical assumptions of mediation. They will be counter-intuitive for many mediation clients who want to be positional, legalistic or rights-based, and will require some explanation and justification if the mediator wishes the parties to adopt one of them. For example, 'In my experience it helps if, instead of getting into a debate over who did or said what to whom, you each tell me briefly what your current concerns are that you would like dealt with in the mediation …'.
5.16 Usually the parties themselves make the statements in oral form. Where there are professional advisers present, the practice varies. Some mediators insist that the parties make the statements and invite the lawyers or other advisers to supplement them if necessary. This is consistent with the philosophical assumptions of mediation and the need for the parties to feel that they have control over their own dispute. A client may be able to articulate his concerns and his interests more persuasively. In addition, there is a tendency for parties to 'tune out' comments from opposing lawyers. In certain cases, like personal injury and employment cases, where a claimant's pain and suffering or distress is an element of the claim, a description by the claimant of his suffering can be particularly persuasive. Where an ongoing relationship is likely, in the business or personal context, a party's direct presentation can affect the other party's willingness to commit to an ongoing or working relationship. A willingness to settle a case can be more forcefully addressed via a direct party presentation.
Other mediators request the advisers to make the statements, and then invite the parties themselves to add their contributions. Where there are multiple lawyers, there is sometimes a 'hierarchical' order of presentation, with barristers speaking first, if they are present, followed by solicitors. These arrangements give a dominant role to lawyers in the mediation process and reassure them that their clients will not prejudice their cases by admitting liability or making other detrimental statements. However, mediators should be careful about establishing a strong sense of hierarchy, lawyer domination and exclusive focus on legal rights, at the expense of client interests and party participation.
5.17 Where there is more than one party on a side, the mediator will normally invite each side to nominate a spokesperson to speak and will be wary of inviting the others to add to it for fear that this stage of the mediation will become too protracted. The mediator can reassure the other participants that they will have later opportunities to speak.
The mediation of a complex commercial dispute was held during the course of litigation and conducted in a vacant court room. The barrister mediator sat at the bar table, with the barristers and solicitors on an adjoining table, and the clients seated in the public gallery. The mediator invited the various lawyers to make 'submissions' to him and did not give the parties an opportunity to speak. The submissions, and some argument over them, proceeded for some hours, after which the mediator announced that there had been no progress in the mediation, and as the agreed time for the process had expired, he terminated proceedings. After a formal complaint to the organisation that appointed the mediator, another mediator was supplied at no cost and the matter settled after full participation by the clients (who were seated at the mediation table) at the second attempt.
5.18 There is some significance, albeit limited, in who makes the first party statement. Research shows that the first speaker establishes a narrative framework which can predominate and be more influential on listening parties than subsequent statements. This is referred to as the 'tenacity of the first voice'. Mediators might also be more inclined to believe the first speaker than the second or subsequent speakers where their versions differ from the first. Although mediators do not make binding decisions, their first impressions may unintentionally affect the way in which they conduct the process.
5.19 Another point of significance is that the second speaker is likely to be defensive and to deny, justify or excuse what has been said by the first, instead of giving his or her own statement. This detracts from the objectives of the party statements and, as indicated below, mediators often indicate clearly to later speakers that they are to give their own versions of events and not to respond to what they have heard.
Nevertheless, mediators would be wise to downplay the significance of speaking first. They should remember that while the mediator is responsible for conducting the process fairly and even-handedly, this depends on the overall conduct of the mediation and not on a single decision early in the piece. And they should inform the parties that:
There is no major disadvantage in speaking second, and each party will have an approximate equality of speaking time.
There will be other occasions for parties to go first, for example, in the separate meetings, so that 'going first' can be rotated.
5.20 Most mediators decide themselves who should make the first party statement. This is the preferred practice. It shows that the mediator is in charge of the process, and it prevents any conflict between the parties at an early stage. In making their decisions, it is useful for mediators to have both a private rationale for their decision, and a public explanation for it.
The 'weaker' party should speak first, to reassure them about the fairness of the process.
The more anxious party should speak first, to settle them down.
The less anxious party should speak first, so that the other can settle down.
The party not legally represented should speak first, so that they do not feel disadvantaged.
The party claiming something from the other should speak first, because they need to set the parameters of the negotiations.
5.22 In order to legitimise their decision, and retain the parties' trust and confidence, mediators should give a brief explanation for their choice of first speaker. Clearly, mediators would not always express publicly their underlying rationale for asking one party to speak first. However, they need to provide a plausible public reason, which may involve some mediator licence, for example:
'I should like John to begin because he is the claimant in the litigation proceedings …'
'I should like to hear from Mary first, because she instigated the mediation …'
'I should like to hear from Fred first, because Mary instigated the mediation …'
5.23 Some mediators avoid making a choice between the parties out of fear of losing the trust and confidence of the second speaker. They might ask the parties to decide themselves who should speak first: this may work well in some cases, but create its own conflict in others. Mediators should show leadership in selecting the first speaker and to use appropriate explanations to help the parties accept their decision, without making too big an issue of it. In practice the mediator's choice is seldom challenged.
5.24 Mediators should not invite the second speaker to reply to the first party's statement (for example, 'Mary how do you respond to what Fred has said?'). That approach will allow the first speaker's definition of the problem to predominate and the second speaker is likely to justify, deny or excuse in response. Rather, mediators should direct the second party to give their statement without reference to what they have just heard. They can also specifically instruct the second speaker not to respond to the first (for example, 'Mary, without responding to Fred, can you tell us in your words what your concerns are today …').
5.25 There are two options for the direction of the party statements. As has already been indicated, the party statements can be addressed to the mediator directly and not to the other party. This avoids heated, or even hostile, interaction between the parties in the early stages of a mediation and affords the mediator the opportunity to use good attending and following skills to ensure that the early communications are accurately heard and each speaker feels listened to. On the other hand, where the parties are experienced in, or comfortable with, the mediation process, are professionals, or are articulate, the mediator may encourage them to speak directly to each other at the opening stage. Encouraging direct statements can give an opportunity for parties to reconnect with those with whom they have worked or had a relationship in the past, and can encourage co-operation at an early stage of the mediation.
5.26 The mediator's main role during party presentations is to listen actively. This requires mediators to exercise good listening skills and display appropriate non-verbal language during the party statements.
They may also have to ask questions, but these should mainly be open questions. Some clarifying questions may be necessary where a party is unclear or ambiguous, but this is not the time for seeking detailed information, asking probing questions, or otherwise embarking on a series of leading questions which either detract from the party telling their own story or make them defensive. When a speaker stops talking, after only speaking very briefly, the mediator invites more information by asking in an open-ended way, 'Is there anything else?' or 'Would you like to go on?'
5.27 As suggested above, mediator intervention will also be required where a party statement is excessively long or descends into unnecessary detail for this stage of the process. Here the mediator should restate the purpose of the party statements as being to provide only an overview of the problem, and reassure the speaker that there will be a later opportunity to go into detail. Where there is repetition of a particular fact or theme, the mediator will need to acknowledge the point being made, and even write it down, to cure the 'broken record' symptom.
5.28 Another role for mediators during the party statements is that of note-taker. Most mediators take only brief notes, usually words or phrases to record key concerns and interests, common ground and areas of potential agreement, and prospective concessions. It is difficult to practise good listening skills and take comprehensive notes at the same time, though there can be a division of these labours between two co-mediators.
A common form of note-taking is as follows. The mediator divides a page with a vertical line and heads each column with the name of a different party. As the mediator records words or phrases under the appropriate column, he or she can connect concerns common to both parties with a line or numbered asterisk, to assist with the later development of the agenda.
There is a professional business partnership involving two partners, Simon and Jonathan. Simon is the older partner in a firm established by his father many years ago. Jonathan is the younger partner who was taken into the business when Simon's son 'defected' to another profession. The two have been in dispute over a number of issues for the past seven months and finally agree to sort things out at mediation.
This is what the mediator's notes might look like at the end of the party statements:
Retain the partnership and name
Retain existing profit-sharing arrangement
Golf is an important rain-making activity
Wants to settle dispute here privately
Jonathan has bad attitude
Jonathan's clients are late in paying bills
Wants greater share of profits
More professional workplace needed
Needs client diversity
Does not want this to get out of hand
Simon should spend less time on golf
Simon should use support staff less for private activities
Is committed to retaining partnership
These notes allow the mediator to identify the parties' common interests in retaining the partnership and avoiding a court battle, and to recognise the fact that some other interests of Simon, for example, the payment of bills, are not incompatible with those of Jonathan.
Mediators should be consistent with note-taking in that speakers will be conscious of sudden changes, such as the mediator stopping writing, or recommencing writing. Some mediators use note-taking as a way of reducing anger or a stream of consciousness; by insisting that they need to make more detailed notes, the mediator gets the speaker to talk more slowly and less emotionally.
5.30 The first speaker, or their adviser, might ask for a right of reply after listening to the second speaker. In most circumstances, this should be denied for the same reasons that the second speaker was asked not to respond to the statement of the first. A mediation is not a debate or a court-room combat, and a reply is likely to involve justification, denial or excuse and lead to an adversarial confrontation too early in the piece. A summary of the party statements is a more appropriate development at this stage.
5.31 Mediators typically thank each party for listening to the presentations, and for each party's openess and frankness. Some, but not all, mediators summarise the parties' statements, normally after both have made them. To summarise the first statement directly after it has been made would be to devote excessive attention to that party and to leave the other in the cold. The statement summaries serve several functions, to:
reassure the parties that they have been heard correctly as regards the content of what they have said;
provide some acknowledgment and validation of the emotional side of the parties' statements;
enable mediators to check the accuracy of their understanding of what has been said and provide feedback if they have got things wrong;
require each party to hear what the other has said for a second time;
allow a party to add to their statement when they realise from the summary that it is deficient.
Actual summary: some of the parties' actual words are used so that they hear from the mediator's mouth the same terms they have used themselves. Early words and phrases, in particular, are restated in their original form. For example, in the Simon and Jonathan dispute a summary of this kind would begin:
'Jonathan, you began by saying that this matter was quite simple, and that Simon annoyed you over his old-fashioned ways and needed to change to a more professional style …'
Reframed summary: the mediator reframes the parties' statements so as to shift to interests, remove the sting from any comments and focus on the future. In this method, the mediator avoids the actual words of the parties and provides a sanitised summary. For example, in the Simon/Jonathan example:
'Jonathan, you began by suggesting that this matter should resolve easily, and that you wished to discuss how the firm could adapt its practices for the future …'
Cross-summaries: the mediator asks each side to summarise what they have heard from the other in order for them to walk in each other's shoes. In the example of Simon and Jonathan:
'Simon, as I foreshadowed earlier, I would like you to summarise what you heard Jonathan say, and then I shall ask Jonathan to summarise your statement.'
5.33 Actual summaries give the parties the experience of being heard. In actual summary the mediator should use the second person and reported speech ('By way of summary, you told us that Simon was …'). This distances the mediator from statements which are hostile to the other party. Therefore the mediator should not say 'By way of summary, Simon annoys you over his old-fashioned ways …'. Cross-summaries involve several risks for limited potential gain.
5.34 The mediator next defines the problem, by identifying and prioritising the issues. Definition of the problem provides a structure to the mediation. It can set an agenda for the mediation, providing a sense of direction and purpose for all participants. It also reassures the parties that their concerns have been heard and noted from the outset.
5.35 Where parties are in conflict, mutual antagonism and poor communication can cause them to think that they are in dispute on all matters. The mediator can perform an affirming role by pointing out areas in which agreement already exists. This serves to give the parties a positive perspective on the problem, to delineate matters on which no decisions need to be made, and to provide a platform for discussion, co-operation, further agreement and decision-making. These are sometimes called 'easy agreements' or 'cheap agreements' and they can generate a 'climate of consent'. They may include:
substantive issues, for example, agreement on the amount of damages suffered;
procedural issues, for example, that both parties will accept a particular valuer's figures; and
objective standards for decision-making, for example, that any agreement should measure up to current industry practices.
In the partnership mediation being referred to in this chapter, the mediator might indicate the common ground between the parties in the following way:
You may not realise it, Jonathan and Simon, but there are many things on which you are agreed. You both agree that this is a profitable partnership which needs to remain competitive in the future. You agree that you have different professional strengths which you contribute to the firm, and you agree that there are different categories of clients being serviced. And finally you are both agreed that you would like to sort things out today so that you can get on with the business. Is that correct? Now let's look at the things you still have to work on …
The mediator describes the common ground in terms of the information provided in the party statements, so that it does not appear contrived or imposed (or incorrect). The mediator's notes and summaries are instruments for achieving this goal. The mediator may present the areas of agreement visually on a board or flipchart and use them subsequently to emphasise progress and maintain a sense of momentum. The list can also be added to as new agreements are achieved.
5.36 Sometimes it may only be possible to identify agreements at a high level of generality; for example, that the interests of the children should prevail, or that any outcome should uphold the principle of ecological sustainability, or that both parties would like an outcome that is fair and minimises transaction costs. In these cases, the mediator must exercise a judgement about whether to leave out this stage on the grounds that, because of its high level of generality, it may appear trite, patronising or absurd. However, our experience is that it is an important stage in the process and should be attempted in at least some form.
5.37 Mediators can make a valuable contribution to the parties' negotiations by assisting them to list and prioritise the issues which require decisions. While setting the agenda is something which many parties would find difficult to achieve on their own, it is also a complicated exercise for most mediators, whether early trainees or grey eminences. For this reason some mediators lapse into ad hoc agenda-setting, allowing the parties to talk about issues randomly as they arise. At the other extreme is a very structured and elaborate approach, involving considerable leadership and finesse from the mediator, in consultation with the parties. Dispute-resolution theory points to the benefits of the latter approach, which is what is described here. However, it is a difficult ideal, which requires sound understanding and extensive practice to realise.
It provides structure and clarity to a problem which might have been presented and perceived in chaotic and confused terms.
It defines the dispute in neutral terms and not according to the one-eyed perceptions of each party.
It subdivides the dispute into smaller individual parts to make it less formidable and easier to negotiate on.
It reassures each party that their concerns have been noted and will be dealt with during the course of the mediation.
It serves as an agenda for the rest of the mediation and allows the mediator to check off matters that have been discussed and finalised.
It symbolises the fact that the dispute is finite, as depicted by the list, and not over all matters under the sun.
It provides a basis for the parties to prioritise the order in which issues will be dealt with.
It provides an indication of the futher work, information and documents required.
5.39 In Chapter 4 reference was made to the importance of how the issues are worded. It was pointed out, with illustrations, that mediators should ensure some principles are followed in wording items on the list of issues. In short, mediators should:
Restate or reframe positional claims to reflect underlying interests and clarify and make explicit the parties' needs. For example, 'transportation is an issue' in a claim over the family car in a matrimonial case.
Change from one-sided views of the dispute towards views which reflect both sides of the problem. For example, 'each parent has a need for involvement in the children's lives' where both parents are claiming sole custody.
Move from a specific definition of the problem to one which is more generalised and tentative. For example, 'you need a fair division of the property that takes into account your past contributions' in a claim for 80% of the matrimonial property.
Include both sides' interests in the definition of the problem. For example, 'solutions that allow the children to live with one parent and allow the other to have a say on their education and upbringing is required'.
Use neutral and non-judgmental language. For example, 'you need to receive a monthly sum to cover the school fees, clothing and food'.
Cast positions and interests in open-ended problem solving questions which do not imply solutions. For example, 'how can the debts be repaid in a way that satisfies you both?'
'De-legalise' the problem. For example, 'how can you deal with the different versions of events?'
'De-monetise' the problem. For example, 'what actions are required to make good the losses?'
Other mediators convert the issues into a series of problem-solving questions. The main advantage of this system is that questions beg answers and they provide the mediator subsequently with a useful source of leverage for soliciting the parties' responses. For example, the mediator might say 'Simon and Jonathan, we are looking for possible ways of answering the third question, "What is an appropriate client base for the firm?" What suggestions do either of you have?'
Questions are also dynamic ways of presenting the issues because they contain action words, namely verbs (newspaper sub-editors know about this when writing headlines). They give the issue some 'lift', a sense of purpose, something in which the parties can get involved. It is not easy to ignore a dynamically written question ('How Can We Improve Teachers' Working Conditions so that Schools and Students will Benefit?'), just as it is not easy to ignore an action-packed newspaper headline ('Mediator Solves Bitter Teachers' Dispute in One Dramatic Night').
The following table depicts the different approaches to issue identification in the same partnership dispute:
Future profit shares
How should the partners share profits in the future?
Appropriate use of support staff
What is an appropriate use of support staff?
How can the billing system be made more efficient?
Timing of Simon's retirement
How should each partner's involvement with the firm be arranged over time?
5.41 In some cases the parties might attempt to restrict the list of issues to one matter only. For example, in an action for personal injuries arising out of a workplace accident, the parties might be agreed on the damages and be in dispute on the question of liability. The single issue of liability, and even the question 'is the employer/insurer liable?', are both problematic for mediation. The mediator should attempt to generate more issues to prevent the parties becoming stuck in positional bargaining on a single issue only. In the above case, the following issues might be developed:
What were the circumstances surrounding the accident?
What has been the effect of the accident on the employee?
What is the basis for past claims and offers?
In what proportion should the parties bear the losses suffered?
The object of this expansion is to open up the problem solving process and to prevent it becoming too narrowly focused too soon. While a narrow focus might be inevitable at a later stage, the mediator strives to keep the problem open-ended in the beginning to encourage broader thinking about the problem.
5.42 In some situations one of the mediating parties wishes a matter to be included in the list of issues, but the other insists that it is not something requiring any decisions, or even discussion. There are risks both in including the issue on the board, and in excluding it. Our view is that the latter risk is the greater. To minimise the problems inherent in the former, the mediator could say, in the Simon and Jonathan dispute, something along the following lines:
Simon, the use of support staff time is something that Jonathan would like to talk about and although you feel that it is not a matter requiring any decisions, it seems necessary to refer to it in order to have all the issues between you resolved. Likewise, you may wish to talk about some matters which Jonathan does not think are necessary for today's decisions. Is that a reasonable arrangement for you both?
5.43 This choice of words is designed to have the topic dealt with in some degree, to marginalise slightly its importance, and to make the arrangement mutual and reciprocal so that it can potentially operate for both parties' benefit.
This problem can also be pre-empted, where time and resources allow, by advising both parties before the problem-defining begins that this difficulty sometimes arises and by indicating how it will be dealt with should it arise in the present case. This has the advantage of giving the mediator's 'rule' greater impartiality, as it has been given before either party stands to 'gain' or 'lose' from it.
5.44 The list of issues is often presented visually on a whiteboard or flipchart. This provides a point of common focus for the parties, a public checklist of matters to be dealt with, and a visible and a visual point of reference for the mediator.
There are a number of important techniques relating to this apparently simple function:
Identify its purpose so that the parties do not assume that substantive agreements about the matters in dispute are being reached. Similarly, it should be explained that creating a 'wish list' is not its purpose.
Agenda matters should not be written up before they have been agreed to verbally between the mediator and the parties.
Particular attention should be given to not including any judgmental or inflammatory terms in public view on the board.
Care should be taken in erasing items from the board, as they might have symbolic significance to one party.
The mediator's handwriting needs to accommodate the visually challenged. Using appropriate colours can be helpful. Avoid numbering so that no issue is given priority over others by the mediator.
Stand to the side of the chart, and sit down between making additions to it, to avoid being in teacher or lecturing mode.
The board should be cleaned, or the paper disposed of, at the termination of the mediation so that it is not accessible to cleaners or whoever will be using the room subsequently.
Practical experience has taught us to be conscious of the fact that a proportion of adults are not literate.
5.45 Thus far the mediator has written up various issues on a board in no particular order and the question now arises as to how they should be prioritised for purposes of the discussions. There are two approaches.
The first is that the mediator invites the parties to examine and together prioritise the issues. This approach acknowledges that the parties are in control of the dispute and that their subjective priorities are more important than the objective priorities of the mediator. Thus the parties might want to talk first about urgent debts and insistent creditors, before working through assets and valuations. The parties' priorities can be shown visually on the board against the list of issues. In practice there is usually little problem in the parties reaching agreement on priorities. However, where there are difficulties, the mediator is required to intervene, and is advised to try and move through this stage quickly. He/she might suggest alternating priorities, two 'first' priorities with each dealt with for a limited time, or some random choice (flip a coin) on priorities.
5.46 The second approach involves the mediator taking the initiative in prioritising the issues. This avoids any problems of the parties not agreeing on priorities. It also allows the mediator to use his or expertise to guide the parties. For example, the mediator might explain that good negotiating practice involves dealing with 'easier' matters first, before moving to those which are most difficult, so that the parties develop some early success and confidence and avoid becoming deadlocked too soon. In this approach it would be problematic to allow the parties to self-select the most difficult issue with which to start their negotiations.
Each approach has its strengths and its shortcomings. There is also scope for reconciling the approaches in practice by balancing user choice with expert guidance. Circumstances will provide the mediator with the clues for exercising this task and it should be accomplished as efficiently, and with as little argument and pedantry, as possible. As with other aspects of agenda setting, this involves some delicate leadership by the mediator. As the expert in dispute resolution, the mediator is alert to the best practice in this exercise. However, the mediator should not appear to be imposing his or her list of issues and priorities on the parties.
In addition, the mediator may need to decide if issues are best addressed separately or together, sometimes called 'packaging issues'. Packaging can provide opportunities for trade-offs or integrative solutions.
5.47 Experienced mediators can anticipate the predictable issues in their fields of expertise, even where they have no prior knowledge of the particular dispute. Doing so is useful where the parties are hesitant about presenting the issues themselves. Normally, through appropriate questioning, the mediator is able to draw out of the parties those issues which he or she knows, if only at a level of generality, are normal for the particular category of dispute. Where there is pressure of time the mediator may even commence the mediation with the standard issues on the board, ask the parties whether they are relevant to their case, and invite them to add additional issues. The following is a standard list of issues in a dispute involving the dissolution of a professional partnership.
1. What are the assets and liabilities of the partnership?
2. How should the assets be divided among the partners?
3. What needs to be done in relation to the liabilities?
4. How should the clients of the partnership be dealt with?
5. What legal formalities are required for the dissolution?
6. What else is required to finalise the matter?
7. How should post-dissolution problems be dealt with?
In family cases, for example, standard issues include the possibility of reconciliation; disclosure in relation to property and finances; the welfare of the children (residence, maintenance, education and health issues); division of assets; sale of assets and division of proceeds; oustanding debts; future issues; and the associated formalities.
5.48 As has already been suggested, mediators can use the list of issues in various ways. They can direct the parties' attention to them when there is acrimony in the room, they can tick off completed issues to give a visual sense of progress, they can write up optional solutions next to each issue, and they can use the issues as a checklist to verify that the drafted agreement is comprehensive. They can add to the list if additional issues arise during the course of the mediation and can use the list in any other way that causes the mediation to progress.
Where time is spent on the list and it is not used again, it may appear to have been a futile exercise.
Where the mediator gets the list, or any specific wording, wrong it presents a very visible source of grievance to the affected party.
The mediator may be tempted to stand at the whiteboard or flipchart for too long, assuming an authoritarian position.
The mediator's writing may be illegible.
The list could entrench a party or make the differences between the parties more stark.
5.50 Once a prioritised list of issues is available, the mediation moves to the stages of discussing the various issues, delving into the parties' interests, considering options for resolution, and negotiating specific outcomes. Generically we might refer to this as the 'problem-solving' stage of the mediation. Some of this is just semantics, but there are some important variations in practice. Thus problem-solving, involving option generation and creative negotiation, might be used in commercial or neighbourhood disputes but be less evident in personal injury disputes which might only involve a haggle over money. As much of this stage has to do with different aspects of negotiation and bargaining, this section should be read in conjunction with Chapter 7.
There are two broad modes of mediator involvement during this phase of the mediation. A facilitative mediator style is somewhat like 'directing the traffic', whereas an evaluative style is more like 'driving the bus'. Put differently, the first style can be called 'orchestrator' mode, and the latter the 'deal-maker' mode. The characteristics of each style are summarised in the table:
'Directing the traffic' (sometimes called 'orchestrator' mode)
Maintain order, provide structure, encourage discussion, summarise an reframe, keep notes of agreements reached.
Mediator stays out of the fray, parties assume responsibility for solutions, mediator can observe bigger picture.
Lack of direction, parties might be unable to progress on their own, mediation might be over-lengthy and unproductive.
'Driving the bus' (sometimes called 'deal-maker' mode)
Control communications, extensive questioning, suggestion of options, encouragement and pressure to settle.
Mediator's experience is used to guide parties, parties feel more secure coming to settlements, outcome more likely to be achieved.
Confusing for parties, mediator acts as quasi-arbitrator, parties might become resistant or later blame mediator for outcome.
 Encountered in commercial mediation.
5.51 While mediation is primarily concerned with the present and future, if the parties exchange their understandings and perceptions of past events it may be useful in clearing the air, correcting misunderstandings and opening the way for dealing with current and future issues. This involves encouraging storytelling, as referred to above. Each party can explain their motivations for past conduct and the significance to them of important events. Where emotions are high there may be considerable venting of feelings as parties communicate with one another about the past. It can help to identify important interests.
For example, mediators might say to parties in workplace disputes:
Tell me a little about how the workplace was for each of you before the problems began to arise …
Likewise they may say in a family dispute:
Tell me first of all about the children, can you each give me a thumbnail sketch of each child …
5.52 However, mediators are advised to limit the time spent on discussing past events so that things do not become too protracted and complex. Such exchanges will often not lead to agreement about the past. Mediation is not good at discovering the 'historical truth', nor is that its purpose. Accordingly, where there are several grievances over historical events, the mediator might advise the parties to select a few to deal with (one of each party say), before closing the book on the past.
It can be useful to manage the parties' expectations about the purpose of storytelling, by allowing them to be heard, provide the mediator with information to start defining the problem and to gather information that may be useful in developing options and solutions.
In this regard, it is useful for the mediator to provide the parties with some basic guidelines:
Emphasise that each party should 'tell your version' of the past, or 'explain your understanding' or 'how things seemed to you', as opposed to asking them 'to tell the others what happened' or 'to state what are the facts'.
Discourage statements that assign blame and ecourage a description of events. For example, ask a party 'to discuss your version of events and the effect this had on you', without referring to the motivations, invariably negative if not conspiratorial, of the other party. Another way of directing the parties is to ask them 'to discuss your experiences without saying why the other party acted like they did'.
Discourage generalisations, like 'they never' or 'they always', by reframing to focus on the consequences of the behaviour. For example, 'tell us why that upset you'.
Control interruptions and avoid a party monopolising air time. Imbalance may create the perception that the mediator is biased in favour of the person monopolising the air time.
An employment dispute was set down for trial in which the statements of case identified a major dispute of fact (and law): had there, or had there not, been an oral variation of the service agreement? The case involved a substantial damages claim and was set down for three days of trial; each party had a number of witnesses to support their case. At mediation there was about 30 minutes discussion over the question of what the employer, the manager of a finance company, and the employee, an accountant, had said to each other three years earlier. While there was some clarification of the factual issues, there was no agreement on the essential dispute of fact. This factor was acknowledged, and the parties moved on to find a commercial accommodation involving the finance company re-deploying the accountant in one of its subsidiaries. This was achieved without ever reconciling the different versions of the facts.
5.53 Positions are the parties' demands or claims, whereas interests are the concerns, needs or fears that underlie those demands. The parties' interests are not always easy to uncover as people in conflict tend to be positional and make no distinction between demands and interests. In other cases, parties obscure their interests, believing that disclosure would make them appear weak. The mediator can uncover interests by asking questions focused on each party's concerns, needs or fears. The mediator may need to explain to the parties the benefits of discussing their interests to encourage them to be open. Often, separate meetings are required to uncover interests. These meetings are discussed further below.
Having an understanding of interests assists parties to develop options for settling the dispute. The mediator can assist the parties through the device of brainstorming. Here all parties are invited to identify possible options for dealing with the dispute, regardless of how practical, reasonable or viable they may or may not be. The objective is to get the parties to think imaginatively about solutions and to feed off each other's ideas, without the twin fears of being judged as stupid or being committed to their suggestions. All options are noted, usually by the mediator.
Other ways of encouraging the parties to come up with options are by the mediator asking hypothetical questions ('What could you think of in relation to …?'), or analogous reasoning ('Can you think of ways in which other people have dealt with this kind of problem …?'). A further way is encouraging creativity, as to which see the frequently cited example in the box below. Other techniques for encouraging creativity include:
use of analogy and metaphor;
use of concepts and ideas from other disciplines;
reframing problems from a different perspective.
A man left 17 camels to his 3 sons. He left half to his eldest son; a third to his middle son; and a ninth to his youngest son. The brothers couldn't negotiate a solution as 17 could not be divided by 2, 3 or 9. The sons consulted a wise village elder, who asked 'what would happen if you took my camel'. The brothers had 18 camels. The eldest took 9 (a half); the middle brother took 6 (a third); and the youngest brother took 2 (a ninth). 9, 6 and 2 camels makes a total of 17 camels. The wise elder got back her camel.
5.54 The mediator should encourage the parties to evaluate options in terms of those interests and objective standards of fairness and reasonableness. The mediator should also invite the parties to consider the practical consequences of various options. Where no options satisfy both parties, the mediator may attempt to gain agreement at a level of principle. This type of mediator intervention is discussed further in Chapter 7.
A mediation involved a local authority and a property owner who had been affected by a major extension to the council's sewerage works which affected the property's future residential use. The council had offered to purchase the property, but no agreement could be reached on the purchase price. After other issues had been discussed, a brainstorm was held over options for the land. No fewer than ten options were listed, including a joint commercial development between the council and owner, and the development of an environmental park named after the owner. The brainstorm ended with an evaluation of the options, resulting in mutual choice of the original option of a council purchase with the price to be decided by an agreed valuer. While the exercise ended with the option they had first thought of, the process adopted gave it greater legitimacy and prompted them to fine-tune ways of achieving it.
5.55 There will often be hard positional bargaining towards the end of a mediation. Here the parties have to use concessions, packaging, compromises and splitting the difference to reach agreement. The mediator's role in the positional bargaining process is considered in Chapter 7.
5.56 In some contexts, as in family disputes, arguments abound that mediation should be conducted in joint session only to encourage direct negotiation between the parties.
Even in the family context, there is a recognition that changes in format can serve useful purposes, although the mediator must discuss arrangements about confidentiality with the parties before holding separate meetings.
In other cases, there are many ways in which mediators can change the format of the mediation from the joint session. Here the term 'separate meetings' is used to refer to the meetings between the mediator, on one hand, and each party and their advisers, on the other. Other terms used for this part of the process are 'private meetings', 'separate sessions' and 'caucuses'. There are many variations regarding these meetings and the table below suggests distinguishing terms for different kinds of meetings:
Mediator and each party with their own advisers
See discussion in text
Mediator and each party individually without advisers
To give parties an opportunity to talk directly without adviser influence or pressure
Mediator and all parties without advisers
To avoid negative role of advisers, to get parties talking unadvised, to get parties focused on personal or commercial (rather than purely legal) goals
Mediators with all advisers without parties
To explore realistic settlement options where both clients are 'problematic', to explore merits, to discuss alternatives if the matter does not settle at mediation
The terms used above are by no means standard, but are adopted here so as to distinguish among the different kinds of meetings which could be convened at this stage in the proceedings. In what follows, the emphasis is on separate meetings, as defined above, though many of the principles are equally applicable to other kinds of meetings.
5.57 There should always be a reason for calling separate meetings, and these reasons will vary according to the stage that the mediation has reached. Strictly speaking, they should be called to serve the requirements of the parties and the negotiations, and not in terms of the mediator's comfort needs or his or her uncertainty about what to do next. Adjournments can be used to deal with the mediator's problems, ranging from confusion to thirst.
Some of the purposes for calling separate meetings are:
to build trust and rapport with the parties;
to ask a party for impressions of the process and progress made;
to provide relief from destructive emotions and high tension and allow the relevant party to vent their feelings;
to acknowledge the strength of feelings;
to provide space and time for a weaker or disempowered party to recover;
to establish whether there are any concerns which have not yet been raised but which might need to be addressed for the resolution of the dispute;
to clarify the issues, and to 'drill further down' on each issue;
to identify what is at stake for each party generally and if the matter does not settle at mediation;
to attempt to understand the motivations of the parties and their priorities;
where the mediator believes that there is additional information which he or she will not obtain in joint session;
to check assumptions (made by the parties or the mediator);
to deal with breaches of the mediation guidelines and threatened disruption of the process and to get the parties recommitted to the process;
to attempt to break a deadlock by changing the dynamics of the negotiation process;
to help manage the parties' expectations about the process and what can be achieved in mediation;
to ascertain whether an apparently inflexible and intransigent party is open to further negotiation;
to test 'deal breakers' and 'bottom lines';
to engage in 'reality testing' with a positional or intransigent party or to encourage settlement in other ways;
to probe the legal strengths and weaknesses and cost implications of various alternatives;
to coach the parties in constructive communication and productive negotiation strategies;
where the parties are unable to come up with settlement options in each other's presence, to provide a risk-free environment for considering such options;
to encourage 'brainstorming' and creativity;
to work up offers or concessions and consider the timing of their relay;
to check out privately the acceptability of an imminent agreement;
to allow for last-minute consultation with the parties before the mediator terminates the mediation without agreement being reached;
to apply more pressure to the parties in a confidential setting;
to test the parties' perceptions of each other, for example, to ask party A how they view party B's interests and position;
to check confidentiality and identify what information can be relayed;
to task a party in relation to further work, information, decisions or advice that might be helpful to progress the negotiations;
to summarise progress made.
5.58 Here there are no hard and fast rules and practice varies. Where one of the above purposes can be pursued, it is an appropriate time to call separate meetings. Where the parties or their advisers request them, it is appropriate to respond to the request, provided that it does not appear to be allowing the requesting party to control or manipulate the process. It should be pointed out that in some mediations separate meetings are called as a matter of routine, regardless of whether there is an overt need for them. In others they are called as a matter of discretion.
In some styles of mediation, mediators call separate meetings directly after the party statements to establish whether there are any concerns which have not yet been raised or to gather information which has not been disclosed. Other mediators commence the mediation with separate meetings, a practice referred to above. Some mediations are conducted exclusively through separate meetings, but this involves a different concept, referred in this book as 'shuttle mediation'.
5.59 All the variations have their strengths and shortcomings. Our own preference is to follow the 'orthodox' approach and convene separate meetings after at least some of the issues have been discussed in joint session, at least provisionally. Our concerns with calling separate meetings immediately after the party statements are that it artificially prevents the conflict from occurring, it allows the parties to relapse into positional thinking, it introduces the confidentiality of the separate meetings too early in the process, it gives the mediator immense power, and it involves a default shuttle mediation system without that option being expressly considered and chosen. However, in reality many lawyer mediators, unpersuaded by this logic, call separate meetings immediately after the party statements, especially in commercial mediations.
5.60 Sometimes a mediator may conduct a series of separate meetings and begin shuttling messages back and forth between the parties. This is particularly the case in the commercial context where separate meetings are commenced when parties reach the stage of making offers and counter-offers to each other. While it might be necessary for parties to be able to confer alone, and to consult with their advisers, before making or responding to offers, it is not necessary that this be done through separate meetings. It is feasible to adjourn the mediation for such deliberations to take place, and to resume the joint session thereafter.
The concern is that the process should not move by default into shuttle mode, and should involve a conscious strategic decision of the mediator, after some consultation with the parties. It may be entirely appropriate to adopt shuttle mediation, but that should involve a deliberate and transparent decision. This is because the mediator's role in shuttle is different to that in non-shuttle mediation. He or she becomes the sole messenger for offers and counter-offers and the sole conveyer of other information on the attitudes and behaviour of the parties. There are necessary limits on the confidentiality principle in this context and the mediator acquires immense power.
5.61 Mediators should ensure that the room in which a separate meeting is being conducted is soundproofed from those outside. Where the accommodation allows it, the parties can each be offered their own separate rooms and the mediator will move between them. This gives the mediator their own space in the room where the joint meeting was held. It also provides the best image of equality as between the parties.
5.62 As compared with the joint sessions, there are two potential, yet contradictory, changes in the separate meetings. These may be extremely subtle changes, or very pronounced, depending on the style of the mediator and the requirements of the mediation:
In a more relaxed setting, the mediator can identify with the relevant person and empathise with their situation. This is sometimes referred to as 'alliance formation', in that the mediator builds an alliance with the person so that he or she is perceived as their ally in relation to the problem they are facing. It might also be considered the 'guardian angel' function.
In a confidential setting, the mediator can be a harsher critic of the relevant person and be more forceful in pointing out the downside of their position. This is sometimes referred to as 'reality testing' in that the mediator uses a wide range of tactics to disenchant the person with their positional claims. It might also be considered as the 'devil's advocate' function.
5.63 While many mediators regard at least one separate meeting with each party as a fundamental stage of the mediation process, they may have a limited bearing on the outcome in some cases, as illustrated in the following case study, although in every case they should help to build trust and rapport between the parties and mediator.
In a mediation involving a division of matrimonial property, one party was being particularly intransigent and requested a separate meeting. In the meeting he informed the mediator that the reason for his attitude was that he had recently been diagnosed with glaucoma, that he worked in the surveillance industry, and that he would lose his work within the next 12 months. He did not want this disclosed to the other side (and had not even told his professional adviser until then). The mediator empathised with the predicament and the desire not to disclose it. The mediator could not use the information in any other way, but the interest of the party in explaining and justifying his behaviour to the mediator was satisfied and the matter moved to quick resolution in the next joint session.
When they have served the purpose for which they were called.
When the party involved has nothing further to say and the mediator nothing more to contribute.
Where new information, threats or final offers emerge – resuming the joint session might return responsibility to the parties in those circumstances.
When the mediator decides to terminate the mediation without agreement.
5.65 There are four significant transitions in relation to the separate meetings. As the transitions may invoke some anxiety and suspicion on the part of clients, the mediator should give an explanation to justify the change and to reassure the parties. Here is a model mediator explanation for each transition, based on the scenario of Simon and Jonathan referred to earlier in this chapter.
As indicated earlier, it is normal practice for the mediator to meet with each of the parties separately, and to give the other some time out, and I should now like to do that with you. I shall probably meet with you each for about 20 minutes, and if I am going to be significantly longer than that with either of you I shall let the other person know. These are confidential meetings and I shall not disclose what either of you has said unless you ask me to do so. Jonathan, as I heard from you first when the mediation began I shall speak to Simon first now. Would you like to go into the other room, have a coffee and think about options for the billing system. I shall come to see you when I have finished with Simon.
Simon, thanks for meeting with me separately. Can I reassure you again that what is said here will be kept confidential unless you ask me to convey some offer or message to Jonathan … Let's start by hearing how the mediation has been going for you so far …? Thanks, Simon, now is there anything new you would like to raise with me which hasn't come up in the joint session …?
As I understand it, Simon, you would like to make an offer to Jonathan when we resume in joint session along the lines that if he is willing to set up a more effective billing system for his clients then you are prepared to spend only two afternoons a week on the golf course. You also said that while you were on your own you would consider ways of increasing Jonathan's share of the profits on a phased basis. Is that correct?
Thank you, Simon and Jonathan, for meeting with me separately. That can sometimes be an important stage in a mediation, and it gave you time to consider settlement options and do some other homework. Now as a result of those meetings, is there anything which either of you would like to say to the other …?
Ways of dealing
Breach of confidential disclosure in separate meeting
Make written notes of confidences, limit length of meetings
Development of suspicion and distrust ('What is going on without me …?')
Educate parties, normalise this stage, keep to times, meet with both sides, give withdrawing party task to perform
Mediator mis-communicates an offer or information or money figure
Write down details and check with party before conveying them
Party becomes anxious over length of other side's separate meeting
Advise of likely duration, and tell waiting party if longer than expected
Party thinks mediator is on their side
Avoid sympathy, too much bonding and encouragement of their position
Creates too much power for mediator
Have your assistant (if you are mediating with an assistant) 'keep you honest' and require mediator debriefing
No progress on resumption of joint sessions
Prepare parties at end of separate meetings for subsequent negotiations
Detachment of parties from each other and lack of 'constructive confrontation'
Do not hold too early, resume joint sessions after served purpose
Due to these risks, and in particular the potential loss of trust by one or both parties, some mediators conduct few separate meetings. In our experience, this precaution is unwarranted. However, the concern underlying this practice should be understood and dealt with through the expediencies of advance notice, explanation, confidentiality and equality referred to in the above pages.
5.67 In a mediation simulation conducted by law school students one of the participants learnt a dramatic lesson. On returning to the mediation room for a separate session, the participant saw the mediator's notes on the table, including a description of the other side's forthcoming offer. The student was struck by how easy it is to break the confidences of separate sessions through inadvertence. It is a useful lesson about being careful about the confidentiality of the mediator's notes.
5.68 It is customary, and usually desirable, for the parties to be brought together again (if there has been a separate meeting or several separate meetings) for further discharge, consideration of options and final bargaining. Here the mediator should discharge the parties from re-opening matters already resolved or from going over old history again. The mediator should ensure that all issues in dispute have been dealt with, that no agreements have been overlooked, that the parties can live with the final settlement, and that unforeseen contingencies have been considered. The mediator's role in dealing with the dynamics of this stage of negotiation are discussed in more detail in Chapter 7.
5.69 In most mediations the agreement, if one is reached, is reduced to writing. It is a term of most mediation agreements in general civil and commercial cases that the agreement will only be binding once it has been reduced to writing. This is an important precaution against any disputes over whether agreement has been reached or not.
In some situations, heads of agreement or memoranda of understanding are drafted, to be subsequently refined into formal arrangements, whether as a deed of agreement, terms of settlement or consent orders which will be ratified by a court. In the family context, it is usual to set out what has been agreed and the reasons if appropriate, accompanied by the documents required for full disclosure of assets and income if relevant, so that the terms can then be reviewed by independent legal advisers. The terms are variously called, 'parenting plan', 'outcome statement' or 'memorandum of understanding', and are 'without prejudice' until formulated into legally binding contracts or court consent orders. No financial or other mediated outcome is binding on the parties until approved by the court as a consent order or made legally binding in some other way.
In other cases, where there has not been full agreement on all issues, the lawyers may agree to exchange correspondence on some limited matters or to make interim arrangements or obtain interim orders.
In other cases, the parties may prefer an oral agreement, especially where the type of agreement is too vague to have legal enforceability. For example, in a dispute between supervisor and employee, they might 'agree to respect each other's work styles' or 'agree that the administrative assistant should give Jonathan's work priority in the mornings and Simon's work priority in the afternoons'. Even in those cases, it is usual to have a simple form of agreement which is signed.
Chapter 10 reviews settlement formalities across practice areas. Sample mediated settlement agreements and a Tomlin Order are in Appendix 4. For family law precedents, refer to Resolution's Precedents for Consent Orders which are universally used and accepted and have been approved by judges.
Where the mediator assists with drafting of the agreement the following principles should apply:
There should be close consultation with the parties over its precise wording.
All drafting should be done in plain English and where possible the parties' own words and terms should be used.
Aim to put positive commitments and mutual obligations first.
Use non-judgemental language.
There should be a sense of balance in the agreement in that the parties' names are used alternatively and their rights and obligations are balanced against each other.
Ensure that there are clear and verifiable methods of performance. Be specific about payment terms and timeframes.
Each page, and any alterations, should be initialled and the final page should be signed by the parties; some mediators sign as witness to the parties' signatures.
A list of unresolved issues can be drafted to assist the parties in future dispute-resolution efforts.
5.71 Inevitably the content of the written document will reflect the parties' agreement. However, there are many different styles in which this can be recorded, from a flourishing aspirational style which deals with matters of principle in broad generality, to a focused legalistic style which records minute detail with a view to legal enforceability. The context and circumstances of the mediation will determine which of these styles, and the many variations in between, should be used.
Most agreements are likely to contain the following elements:
names of the parties;
date of the agreement;
a description of the dispute or conflict which is the subject of the agreement;
responsibilities of each party;
if payment is part of the settlement, terms about amount, timing and form of payment are required;
what is to happen to any litigation that is on foot;
signature by the parties (or any other formality required by the nature of the agreement).
Cooling-off period: 'This agreement will become effective after a period of [x hours or y days] unless one party notifies the other in writing …'
Return to mediation: 'In the event of the parties encountering any difficulties in the application of this agreement they will use their best endeavours to settle the problems with the assistance of the mediator.'
Supervision of any performance: 'The mediator will supervise the performance of any obligations or duties required in terms of this agreement.'
Goodwill statement for the future: 'The parties agree that they will treat each other with courtesy and respect in the future and avoid any actions which might cause the conflict to recur.'
5.73 Mediators should take some care in terminating the mediation, even if agreement has been reached on all matters requiring decisions. A short closing statement can perform some of the following functions:
Conclude the proceedings on a positive note.
Commend the parties for what they have achieved.
Encourage compliance with the agreement.
Normalise the 'post-settlement blues' (that is, the prospect of the parties having subsequent misgivings over concessions they have made).
Thank the lawyers or other advisers for their contributions.
Reassure the parties as to the confidentiality of the mediation.
Invite the parties's lawyers to contact the mediator if there are any issues regarding implementation of the agreement.
Invite the parties to return to mediation should that be necessary.
The closing statement should be tailored to the circumstances. For example, 'Through your commitment and hard work you were able to reach agreement. I commend you for your efforts. You have worked through the problem thoroughly, with the able assistance of your lawyers. I reassure you of confidentiality and will destroy the notes that I have taken during the mediation.…'.
5.75 There are different forms of post-mediation review and ratification by bodies or individuals external to the mediation meeting, such as boards, local authorities or government and even courts. While this is primarily the responsibility of the parties, the mediator might discuss with them ways of securing the necessary ratification.
The same consideration applies to the review of a mediated settlement agreement by lawyers, accountants or other professional advisers. For a settlement of an employment matter to be legally valid, the employee or worker must (among other things) have received independent advice from an adviser falling within one of the permitted categories of advisers.
In some cases, it might be advisable for the mediator, with the client's permission, to contact the adviser in order to provide a balanced version of what had occurred in the mediation. Mediators can also write to advisers explaining the dynamics of the process so that the agreement is not reviewed with too much clinical detachment.
In a mediation between a local authority, represented by the an in-house lawyer, and a property developer, it was decided that the mediator should address a closed meeting of the authority in order to promote the ratification of a controversial proposed agreement. The developer agreed to waive the confidentiality of the mediation for this purpose only. At the meeting, the authority's external lawyer first explained the nature of the proposed agreement and its benefits, after which the mediator addressed the full meeting of council and answered questions. This served to bring some of the context and dynamics of the mediation to the attention of the ratifiers. The local authority subsequently ratified the agreement.
5.76 Where there are legislative or other requirements for mediators to report to persons or bodies outside the mediation, this reporting function should be disclosed to the parties in advance and might be subject to agreed confidentiality constraints in the mediation agreement and mediator standards and codes of conduct. Some relevant reporting requirements are as follows:
Court-referred or encouraged mediations: the court may require advice in general terms of the outcome (for example, that the parties attended the mediation; that the parties prepared for the mediation; or that the matter was settled at the mediation). Where there has been a Commercial Court 'ADR Order', the parties report to the court what steps they have taken towards ADR and why such steps have failed. That enquiry does not extend to whether a party acted reasonably in mediation.
Community mediators: mediators usually report on the mediation in the form of a debriefing document which they complete after terminating the mediation. This is submitted to the director of the programme.
Family mediators: mediators may disclose information gained in their role as mediator if they feel it is necessary to protect a child, to prevent or lessen a significant harm, and to report the commission or prevent the likely commission of a crime involving a risk of significant harm.
Workplace mediators: in case of a breach of organisational policy which amounts to gross misconduct, the relevant authorities are usually notified.
Legal services funding: the service may require some reporting back, including comment on the reasonableness of the legally funded client, a factor which can be taken into account when a decision is taken on whether to extend funding.
Other: occasionally a report is made to an external body or person paying for the mediation, such as a government, an employer or an association. In most workplace mediation cases, although HR and line managers will know that a mediation has taken place, the content or outcome is not normally disclosed unless the agreement reached in mediation requires support of management and the parties' consent to disclosure has been obtained.
In all cases: where a mediator becomes aware of any criminal activity, involving risk of significant harm, the mediator can report to the relevant authority.
5.77 Debriefing involves a review and reflection on a mediation which has recently been conducted. It can take place between co-mediators, between a mediator and supervisor, or by a mediator on his or her own. In some situations mediation clients, and their advisers, are asked to complete evaluation forms immediately after the mediation has concluded.
Debriefing serves several purposes for mediators:
It allows them to deal with their own emotional needs, particularly where there has been anger, sadness or other emotions in the mediation session.
It encourages self-awareness as a basis for improving mediator performance.
It assists with supervision, accountability and quality control, and with responding to complaints from consumers of mediation services.
It provides statistical information for survey use.
5.78 Successful debriefing is a sophisticated art and requires training and resources. Some of the requirements for successful debriefing are:
It needs to be structured, preferably in the form of a written report.
It should have an appropriately specific focus, and not be over-generalised.
It requires diplomacy in giving, and self-confidence in receiving, criticism and feedback.
It works best in co-mediation where a mediator targets in advance those matters on which feedback is desired.
It needs to respect the confidentiality of all involved.
5.79 Some mediators follow up on mediation agreements and supervise aspects of their implementation. This is sometimes referred to as shepherding. This may include monitoring a mediated agreement's progress, up to the making of consent orders by the relevant tribunal or court. In practical terms this is usually done through a series of telephone calls. This may also involve offering mediation assistance where the parties are having difficulty in the implementation of the agreement.
5.80 There are numerous potential variations in the conventional mediation process described in this chapter. The most important of the variations, for example, multiple meetings and shuttle mediation, are dealt with in Chapter 10. Chapter 10 also describes variations across practice areas.
There is an internal logic to the stages and sequence of the mediation process and mediators, as the experts in dispute resolution, should guide the parties through the process in order to achieve its benefits.
Despite the logic of the process, there are many points at which mediators have important discretions to exercise and on which they can consult the parties on the design of the process.
As many mediation clients will be unfamiliar with the process, mediators should explain the stages to them, in other words they should make it transparent for the client.
5.82 Find (or appoint) a volunteer and ask them to role play a party in a mediation who has no prior knowledge of the process. Make a mediator's opening statement to them (use some poetic licence to pretend that there are two persons present). Respond to their questions or concerns. After making the statement ask them to give you feedback on what you did well and what you could have done differently. Evaluate your own performance against the standards in this chapter.
5.84 Watch a video of a real or simulated mediation (see section (B) in Appendix 10 for a list) and identify differences in the structure of that process, compared with that described here. Write out possible reasons for why the structures differ.
ACAS, Mediation: Guide for Employers, 2009.
Albin C., 'The Role of Fairness in Negotiation', in (1993) 9 Negotiation Journal 223.
Boulle L. and Nesic M., Mediation: Principles Process Practice, Tottel Publishing, 2001, Ch 4.
Charlton R. and Dewdney M., A Mediator's Handbook, 2nd ed, Lawbook Co, Sydney, 2004, Ch 2.
Cooley J. W., The Mediator's Handbook. National Institute for Trial Advocacy, 2006.
Mackie K. et al, The ADR Practice Guide: Commercial Dispute Resolution, Tottel Publishing, 2007, Ch 13.
Costanzo M., Problem Solving, Cavendish Publishing, London, 1995.
Moore C., The Mediation Process: Practical Strategies for Resolving Conflict, 3rd ed, John Wiley and Son/Jossey-Bass, San Francisco, 2003, Chs 8, 9, 10, 11 and 14.
Folberg J. and Taylor A., Mediation: A Comprehensive Guide to Resolving Disputes without Litigation, Jossey-Bass, San Francisco, 1984, Ch 3.
Pirie A., Alternative Dispute Resolution: Skill, Science and the Law, Irwin Law, Toronto, 2000.
Pruitt D. G. and Another, in Afzalur M. F. (ed.),The Process of Mediation: Caucusing, Control and Problem Solving, Praiger Publishers, New York, 1989.
Riskin L., Understanding Mediators' Orientations, Strategies and Techniques: a Grid for the Perplexed' Harvard Negotiation Law Review, 1996, Vol 1, p 38.
Roberts M., Mediation in Family Disputes: Principles of Practice, Ashgate, 2008.
Roberts, M. Developing the Craft of Mediation: Reflections on Theory and Practice, Jessica Kingsley Publishers, 2007.
Schank R. C., Tell me a Story: Narrative and Intelligence, Northwestern University Press, Evanston, 1990.
Sharp G., 'In Praise of Joint Sessions', in (2009) 11(4) ADR Bulletin 69.
Spegel N., Rogers B. and Buckley R., Negotiation: Theory and Techniques, Butterworths, Sydney, 1998, Ch 3.
Stone D., Patton B. and Heen S., Difficult Conversations – How to Discuss what Matters Most, Penguin, New York, 1999.
Various videos listed in section B in Appendix 10.
 On seating, see Chapter 2.
 Refer to Appendix 5 for a mediator's opening statement checklist. For another model of a mediator's opening Statement, see Charlton and Dewdney, The Mediator's Handbook, 2nd ed, 2004, Ch 1.
 Some family mediators meet with parties jointly only. In workplace mediators, the parties are usually seen separately prior to the start of the mediation, and the mediation session itself may proceed in joint session only. Variations in practice are outlined in Chapter 9.
 In relation to family mediation, there is transparency in relation to financial/property information. Refer to Chapter 10 for a further discussion in relation to confidentiality issues.
 In some contexts like family mediation, a memorandum of understanding is produced, which the parties take to lawyers for advice and to create legally binding agreements and consent orders. Refer to 5.69–5.72 and 10.74–10.77.
 See Charlton and Dewdney, The Mediator's Handbook, 2nd ed, 2004, Ch 1.
 See further on the roles of co-mediators at 9.17–9.35.
 See Spegel, Rogers and Buckley, Negotiation – Theory and Techniques, 1998, paras 3.7–3.9.
 R. Shank, Tell me a Story: Narrative and Intelligence, Northwestern University Press, Evanston, 1990.
 See, Stone, Patton and Heen, Difficult Conversations – How to Discuss what Matters Most, Penguin, New York, 1999.
 See 5.51–5.52.
 M. Costanzo, Problem Solving, 1995, 27.
 See 6.34.
 See 6.28–6.36.
 See 6.45–6.46.
 See 6.38–6.44.
 See 5.13.
 For a further discussion about brainstorming, see 7.38–7.39.
 William Ury, Getting Past No: Negotiating Your Way from Confrontation to Co-operation, Bantam Books.
 See 7.38–7.39.
 See 7.16–7.31.
 A model developed by Dr John Haynes, an American mediator, who trained many mediators in the UK throughout the 1990s.
 The Coogler Model, taken from the US in the late 1970s, for example, gives the mediator a more modest profile, focusing on party autonomy, with advance agreement on guidelines and structure to ensure an orderly process and fairness. Although joint sessions and direct negotiation is the common practice, separate time for each party is included. For further information, refer to M. Roberts, Mediation in Family Disputes: Principles of Practice, Ashgate, 2008. In addition, a hybrid mediation model is developing for family mediation cases, utilising mediators who are trained as both family and civil/commercial mediators, with the aim of resolving more efficiently 'all issues'. ADR Group explain the model in this way (refer to their website: www.adrgroup.co.uk):
This approach is particularly appropriate where parties:
would like lawyers or other professionals present to advise during the mediation itself;
want to mediate over a half or full-day rather than several 90 minute sessions spread over several months, as is normal practice in mainstream family mediation, civil mediation or divorce mediation;
their lawyers have been working collaboratively and resolution may be reached more cost effectively and quickly via this service.
 The parties may agree that the mediator will either report back the substance of the separate meetings or maintain separate confidences, provided that information material to financial/property matters must be provided on an open basis. Refer to Law Society Code of Practice for Family Mediation (sections 7.3 and 7.5) and College of Mediators Code of Practice (sections 4.6.2 and 6.5) in Appendix 8.
 See 8.14–8.15.
 For further information refer to C. Menkel-Meadow, 'AHA? Is Creativity Possible in Legal Problem Solving and Teachable in Legal Education' in 6 Harv. Negot. L. Rev. 97 and J. G. Brown, 'Creativity and Problem-Solving' in (2004) 87 Marq L Rev 697.
 This is particularly the case in commercial mediations.
 See 2.22 and 2.25.
 See 9.6–9.16.
 For a further discussion of shuttle mediation, see 9.6–9.16.
 Requirement C4.2 MQMS stipulates (for LSC contracted providers and those complying with the MQMS) a minimum of two suitable rooms to ensure that parties can be seen separately or be separated if necessary. Refer to Appendix 8. Refer also, for example, to section 7 CEDR Model Mediation Procedure (in Appendix 3).
 Whilst retaining impartiality and neutrality, there are cases, where mediators have to ensure that agreements include certain matters and cover certain content. For example, family mediators are required to have regard by virtue of the Family Law Act 1996 to the principles in section 1 of the Act. In particular, they are required to have special concern for the welfare of children of the family; and must keep the possibility of reconciliation under review throughout the mediation.
 See, for example, section 9 CEDR Model Mediation Procedure, section 8 ADR Group Model Mediation Procedure and Rules, clause 8 in the sample Agreement to Mediate (for a general civil case) and clause 9 CEDR Model Mediation Agreement. Refer to Appendix 3 for these various documents.
 Council of Europe Recommendation on Family Mediation No R(98)1 refers to agreements reached at family mediation not normally being legally binding and that Member States should facilitate the approval of mediated agreements via judicial authorities. The Recommendation is included in Appendix 13. Refer also to 10.74–10.77. In addition, see sections 6.10 and 6.17 College of Mediators Code of Practice and section 5.13 Law Society Code of Practice for Family Mediation (both are in Appendix 8).
 See 10.74–10.77.
 Refer to Appendix 11 for Resolution contact details (formerly, the SFLA).
 Refer also to 10.74–10.77 for variations across practice areas.
 This chapter deals with termination where there is resolution. For termination in cases where there is no agreement, refer to 10.78–10.80. Although there are various factors when mediation may be terminated in the absence of resolution, most mediation agreements and codes of conduct provide at least that the mediator can terminate a mediation where the process is unlikely to result in resolution. See, for example, section 7.2 CEDR Code of Conduct and section 5 CORE Solutions Group Code of Conduct (both are in Appendix 8).
 For example, finance/property aspects in an agreement reached in family mediation are open to review by the court (Jessel v Jessel  1 WLR 1158), although the court is reluctant to interfere where the parties have received independent legal advice.
 Family mediators cannot discuss or correspond with a party's lawyer without the express consent of each party. Where both parties have lawyers, nothing can be said or written to one adviser that is not also said or written to the other, unless at the specific request of both parties. Refer to section 4.5.2 College of Mediators Code of Practice (in Appendix 8).
 Refer to 10.81–10.82.
 Refer, for example, to sections 4.5.3–4 and 4.7.1–2 College of Mediators Code of Practice and section 8.2 Law Society Code of Practice for Family Mediation (both are in Appendix 8).
 Refer, for example, to section 4.4.5 College of Mediators Code of Practice (see Appendix 8).
 See 10.70 and refer, generally, to LSC Disclosure of Information Regulations 2000 (regulation 4).
 Refer to ACAS, Mediation: Guide for Employers, 2009.
 Refer also to Chapter 12 for a further outline of debriefing and self reflection (especially 12.14 and 12.62).
 In contexts like workplace mediation, a mediator might debrief with the HR manager, whilst retaining the confidentiality of information imparted in the mediation, or with a co-mediator where internal mediation is conducted in pairs.
 A sample is at Appendix 7. Refer also to 12.14 and 12.62.
 In family mediation, supervision (or professional practice consultancy, 'PPC') is recognised in the standards of the UK College of Family Mediators (2000a and 2003) and in LSC's MQMS. Refer to MQMS Requirements D3.1 (the position of supervisor), D3.2 (supervision skills) and D4.1–4.3 (how supervision works).
 See 9.35.